Jones v. Black , 48 Ala. 540 ( 1872 )

PECK, C. J.

The power of the courts to declare an act of the legislature unconstitutional and void, is too well established at the present day to be doubted; but it is a highly responsible and delicate power, and never to be exercised, unless the exigencies of the particular case require it. While the courts can not, and ought not to shun or avoid the discussion of constitutional questions, when fairly presented, they will not, and should not, go out of their way to find such topics. They will not seek to draw in such weighty matters on trivial occasions; neither will they, as a general rule, pass upon a constitutional question and decide a statute to be invalid, unless a decision upon the very point becomes necessary to tbe determination of tbe particular case. It is both more proper, and more respectful to a co-ordinate independent department of the government, to discuss constitutional questions only when that is the very lis mota; when the particular ease in hand can only be disposed of by deciding the constitutional question. — Cooley’s Con. Lim. 160,163-4, and the cases cited.

Nor will a court listen to an objection made to the constitutionality of an act of the legislature by a party whose rights it does not specially effect. An act of the legislature will be assumed to be valid, until some one complains whose rights it invades; and it is only when some person attempts to resist its operation, and calls in the aid of' the judicial power to pronounce it void, as to him, his property or his rights, that the objection of constitutionality can be presented and sustained. — Cooley, page 164; Dejarnette v. Haynes, 23 Miss. 600; Dorman v. The State, 34 Ala. 216, 249, and the cases cited.

A party who seeks to have an act of the legislature declared unconstitutional, must not only show that he is, or ¡ will be injured by it, but he must also show how and in / what respect he is or will be injured and prejudiced by it.; Injury will not be presumed; it must be shown. — The cases supra.

The complainants in their bill state, that they are resident male citizens of the county of Bullock, and State of Alabama, over the age of twenty-one years, and duly qualified electors in and for said county and state; but they do not state how or in what manner they are or will be injured or prejudiced a't all, either in their persons, their property or their rights, by the election of a j udge of the criminal court of the said county of Bullock, under what they call a pretended election law, purporting to have been passed by the legislature of Alabama, and to have been approved by the governor of Alabama on the 26th day of February, 1872, entitled “ An act to regulate elections in the State of Alabama,” contained in the printed acts of the legislature of Alabama for the years 1871-72.

For aught that appears in complainants’ bill, they are mere volunteers, and therefore have no right to invoke the extraordinary powers of a court of chancery, in a matter in which they have no interest not common to all the people of the county of Bullock, if not common to all the people of the State of Alabama. As well might a party file his bill to prevent or restrain a public nuisance, without showing any personal individual injury to himself. In case of public nuisances, courts of equity have undoubted jurisdiction, and will interfere upon the information of the attorney-general, or upon the application of private parties directly affected by the nuisance.—2 Story’s Eq. § 924; The State v. The Mayor and Aldermen of Mobile, 5 Porter, 279; Roper v. Randolph, 7 Por. 283; The Mayor and Council of Columbus v. Rogers et al., 10 Ala. 37.

I have found no ease, and none has been cited, where individuals have been permitted to invoke the aid of a court of chancery in a case like the present. The counsel for the complainants have referred to the cases of Osborn et al. v. The President, Directors and Company of the Bank of the United States, (9 Wheat. 738,) and The City Council of Montgomery, (39 Ala. 162.) I have examined these cases, and feel constrained to say they fail to sustain the bill of complaint in this case. In each of these cases, the bill clearly disclosed an interest and an injury to the complainants, and particularly in what the alleged injury consisted.

It is the unanimous opinion of the court that the injunction in this case was unadvisedly granted, and should have been dissolved on the motion of the defendants; and this court, proceeding to render such decree in the premises as should have been rendered by the chancellor in this behalf, do order, adjudge and decree, that the injunction heretofore granted in this case be, and the same is, hereby dissolved. It is further ordered, adjudged and decreed, that the appellees pay the costs of this appeal in this court, and in the chancery court.